2 arrested in Capitol gun protest

AUSTIN AMERICAN-STATESMAN

September 13, 2013

AUSTIN - Two people testing their rights to openly carry guns in Texas were jailed Friday for carrying Civil War-era pistols near the State Capitol, while more than a dozen other gun-rights activists with rifles walked free.

Authorities said Terry Louis Holcomb, 44, identified as a Huntsville-area pastor, and Scott Douglas Smith, 50, of San Antonio were being held on disorderly conduct charges after their late morning arrest by state troopers.

The arrests quickly touched off protests on Twitter and on the Internet that the two men were unfairly targeted, since the replica guns they were carrying are specifically exempt from enforcement under state firearms law. The activists, members of groups advocating open-carry laws, said they had met with state police and Capitol officials earlier this week to detail their plans, to avoid such trouble.

'Can't make up a law'

State Land Commissioner Jerry Patterson, a gun law expert who authored the state's concealed-weapons law, called the arrests unfair.

"They were carrying a copy of the law with them that specifically exempts those particular replica antique ball-and-cap pistols - they don't fire regular bullets - and they still got arrested," Patterson said. "The law was specifically written to allow people to do these kinds of things. You can't just make up a law to arrest someone because you don't like what they're doing."

Capitol police referred questions to officials at the Texas Department of Public Safety, which confirmed the two arrests but had no other details.

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Austin-area resident Nestor Rizo, a participant in the demonstration, said Holcomb and Smith came to the Capitol - as others have several times in the past year - to openly display rifles and legal pistols in their campaign to get the Legislature to pass a law that would allow Texans to openly carry handguns.

Earlier encounter

Under state law, Texans may carry concealed handguns, if they obtain a state permit, but carrying handguns openly is illegal.

"There were two groups - somewhere between 15 to 25 people in all - most of them with rifles that were open carry," Rizo said. "Those two guys both had the replica, black-powder pistols. Nothing was loaded."

Rizo said his group was stopped but not detained by a DPS trooper while walking along 15th Street. The group then visited a nearby coffee shop with their guns openly displayed, without incident, and had walked back to the Capitol, where they were stopped again by troopers who made no arrests.

But while on a sidewalk outside the Capitol's south perimeter fence, his group was stopped a third time, and Holcomb was arrested for illegal display of a weapon and disorderly conduct, Rizo said.

Pistol was holstered

"His replica pistol was holstered the whole time," he said. "No one was 'calculating alarm,'" he said, quoting state law. "We were exercising our rights under the U.S. Constitution and state law."

Patterson said the replica pistols, popular with 1800s historical re-enactors and collectors, don't use regular bullets. Instead, they must be loaded through the barrel using gunpowder and steel balls - a process that takes time and special training.

Rizo said both pistols are late 1850s replicas. State law exempts those guns from the legal definition of a firearm, he said.